Burney v. State

• Decision Date: 23 June 1886
• Citation: 1 S.W. 458
• Parties: BURNEY v. STATE.
• Court: Texas Court of Appeals

1 S.W. 458

BURNEY v. STATE.

Court of Appeals of Texas.

June 23, 1886.

Appeal from McLennan county.

The opinion states the facts.

WHITE, P. J.

This is an appeal from a conviction in the court below for an assault with intent to commit rape.

In the ninth paragraph of the charge of the court to the jury they were instructed that, "when an injury is caused by violence to the person, the intent to injure is presumed, and it rests with the person inflicting the injury to show the accident or innocent intention. The injury intended which raises the presumption referred to in this paragraph may be either bodily pain, constraint, as sense of shame, or other disagreeable emotions of the mind; but from such assault no specific intent to have carnal knowledge in a manner to constitute rape is presumed by law, but such intent must appear from the evidence." In Thomas' Case, 16 Tex. App. 535, which was an appeal from a conviction for an assault with intent to commit rape, where a somewhat similar charge was given, this court says: "While a paragraph is in almost the exact words of the Code, (Pen. Code, art. 476,) and, in the abstract, is unquestionably correct, still we think it was error to give it in this case. The burden was upon the state to show beyond a reasonable doubt that the defendant committed the assault, and that he committed it with the specific intent of raping the person assaulted."

Again, the court charges the jury: "If you believe from the evidence, beyond a reasonable doubt, that in the county of McLennan and state of Texas, on or about the twenty-fourth day of March, 1886, the defendant did then and there unlawfully and feloniously use, or attempt to use, unlawful violence upon the person of said Maggie Schuster, or did then and there make any threatening gesture showing in itself, or by words accompanying it, an immediate intention, coupled with an ability, to use unlawful violence upon said Maggie Schuster, without her consent, or by force or threats, as force and threats have been defined, and that said Maggie Schuster was then and there a female, you will find the defendant guilty of an assault with intent to commit rape, as charged in the indictment, and assess his punishment at confinement in the penitentiary for not less than two nor more than seven years; and, unless you so believe, you will find the defendant not guilty of the offense."

This charge was erroneous, in that, in effect, it told the jury that the offense of assault...